NLRB Rulings Tip Balance Toward Management Coping With Contagion

The National Labor Relations Board has taken a deregulatory approach to labor and workplace law under the Trump administration, and the agency has largely stayed on that management-side course during the coronavirus pandemic.

The outbreak has presented novel legal issues under the National Labor Relations Act, the central statute governing workers’ and businesses’ rights concerning unionization, which the NLRB is charged with enforcing, enmeshing it in disputes that can be hotly contested even when there’s no overarching crisis.

Among those disputes: whether and how to conduct union elections and engage in collective bargaining with the contagion resurgent in the U.S. South and West, and as health authorities advise or mandate social distancing. Even the board itself has dealt with complications against that backdrop, resorting to bargaining with its own employees’ unions via teleconference, NLRB General Counsel Peter Robb said during a virtual meeting on issues related to the virus June 6.

The pandemic also pushed to the fore questions of whether unionized businesses are required to negotiate new workplace safety precautions or hazard pay for workers deemed essential. A handful of charges already have been filed alleging some companies put workers’ safety at risk during the pandemic.

Pro-business case rulings and moves from the board and general counsel since the beginning of the year include those that:

  • gave employers some legal basis to lay workers off without bargaining with their union, due to the unforeseen, extraordinary circumstances presented by the pandemic;
  • curtailed the agency’s own investigative and prosecutorial powers against employers;
  • allowed employers whose facilities are currently closed due to the pandemic to forgo a previously required electronic notification to employees that the employer violated labor laws and explaining their rights under the NLRA;
  • affirmed that employers who require arbitration of work-related disputes can also require confidentiality from workers;
  • and relinquished the agency’s jurisdiction over faculty organizing at certain religious universities and colleges.

One of the most significant policy changes from the board this year came from a decision allowing employers to lawfully implement non-solicitation policies that cover most activities during work time to increase union support.

The decision in a case involving Wynn Las Vegas, LLC, redefines union “solicitation” to include any activity encouraging other workers to vote for or support a union, a departure from earlier policy limiting solicitation to efforts where an employee is urged to actually sign a union authorization card.